Authors Shaikh Saleh Aal e Shaikh

Shaikh Nasir Al-Saadi

Qaa'idaat al-Istihlaak

Collection of Articles on Usool ul Fiqh

HOW TO STUDY FIQH

Shaykh Saalih Aal ash-Shaykh

All praises and thanks are due to the Lord of the worlds, and may He send His salaah

upon Muhammad, the slave of Allaah and His Messenger, and His chosen one and friend.

May Allaah send His salaah and peace upon him and his family and his companions in

abundance till the day of judgement.

I ask Allaah Jalla wa 'Alaa for success in attaining righteous actions and firmness in

action and in speech for myself and you all. And I ask Him for success in every affair and

I ask Him, Subhaanahu, that He makes us of those whom He blesses with beneficial

knowledge and righteous actions and that He doesn't lend us to ourselves for a blink of an

eye, we have no might or power except in Him, Subhaanuhu. Oh Allaah guide us to

righteous action, and bless us with that which You Love and are Pleased with.

As for what follows:

We will mention an introduction regarding benefitting from the books of fiqh, and how

the student of knowledge may study fiqh in the best of ways.

First:

Fiqh and its different issues:

Fiqh contains issues which were around at the time of the Prophethood so there are ayaat

or there is an ayah about them and the Prophet (sallallaahu 'alayhi wa sallam) has

clarified their rulings. So these issues have texts for their rulings and in most cases, the

texts which prove these rulings are very clear as to their meaning. And from them are

those issues which are met with the differences of the mujtahideen regarding the

understanding of the texts regarding these issues.

And from fiqh are issues which appeared after the time of the Prophet (sallallaahu 'alayhi

wa sallam) and these issues were needed by the people due to the increase in size of

Islaamic lands, and due to the 'arabs mixing with others. And it is known that the customs

of the people of Makkah and Madinah and the people of the peninsula are not like the

customs of the people of Shaam and 'Iraaq and the people of Persia and the people of

Khurasaan and the people of Egypt. So customs differ according to the differing

situations of communities, in their lands, due to time, and atmosphere, etc. So issues

came up which the people needed and they asked the sahaabah (ridhwaan Allaahi

'alayhim) about them.

And this is the second type, which are issues which the sahaabah (ridhwaan Allaahi

'alayhim) made ijtihaad about. And the ijtihaad of the sahaabah regarding these issues

was built upon the implication of a text by taking a similar issue and applying it to a more

general one, or by using something general as a proof in this issue, or by using a general

principle which there is some daleel for like the well-known principle "removing

hardship" and "hardship brings ease" and "matters are by their intentions," and the likes

of these from the general principles.

And there are other issues they made ijthiaad about and the ijtihaad was not very clear in

its proof, meaning it has proofs for it and against it. So the sahaabah had different stances

regarding these matters. And this type is from that which the statements of the sahaabah

are written down and collected. And these issues will have two or more opinions from the

sahaabah, like the issue of the ruling of the prayer in which two prayers are combined due

to rain, should this just be for Maghrib and 'Ishaa' or should it go for Thuhr and 'Asr as

well. Similarly there is the different statements about the periods, are they during the pure

times or during the menses, and things similar to these issues in which the sahaabah

differed over. And this is from the type of differeing which has proofs from the texts.

And there are other issues as I mentioned to you which came up like using fabricated

products or food, like the kuffaar that use, in some of their products, certain things like

the rennett of dead animals and the likes of this. This didnt appear except when 'Iraaq

became part of the Islaamic lands. Afterwards the likes of these issues came up, like the

different clothes that were particular to them, and like the public baths, and entering

them. The public bath is a place where there is hot water which used to be found in

Shaam and near there.

And similarly this is like the different types of buying and selling which weren't known at

the time of the Prophet ('alayhis salaat was salaam), and they only came about after that.

And the likes of these are differed over much by the sahaabah (ridhwaan Allaahi

'alayhim). This differing amongst the sahaabah (ridhwaan Allaahi 'alayhim) was usually

in the issues of ijtihaad, and very little was it in the issues of khilaaf. And the difference

between the two is that the issues in which there is some differing are sometimes issues

of ijtihad and sometimes issues of khilaaf. So the issues of ijtihaad are those in which

there is no text therefore this ijtihaad was made, and it also entails that for which there is

a text. And we mean by a text that which contains a proof from the Book or the Sunnah.

However this proof could be understood from more than one perspective. So one will

make ijtihaad in the issue and understand something from the proof and another will get

something else from it. "And the divorced women should wait three periods" So here, is

the period when she is pure or when she is in menses? This is part of the issues of ijtihaad

which there is no burden upon the mujtahideen regarding their ijtihaad.

The second type: the issues of khilaaf. And this is the presence of differing regarding

some issues, and as we have mentioned this was little amongst the sahaabah (ridhwaan

Allaahi 'alayhim), and the differing is due to ijtihaad by ones opinion along side some

proof for instance how ibn 'Abbaas (radhi Allaahu 'aynhu) used to judge in the issue of

ribaa. He used say there is no ribaa except in "nasi'ah" (a type of ribaa) or that "tafaadhul"

is not from ribaa, and that it isnt usurous profit, but rather only nasi'ah ("at-Ta'jeel" or

having to do with placing a time in the contract upon which ribaa will be collected) is

ribaa. And as for "tafaadhul" with two different things, which is known as "ribaa al-

Fadhl", then he did not count this as ribaa. So this is ijtihaad along side a text.

And similarly he allowed, for a long period of his life, (radhi Allaahu 'anhu) muta'ah

marriages, and he thought they weren't abrogated. And this includes other than these

issues in which there is a clear proof. These are called issues of khilaaf. And differing in

them is weak and it is not permissable to establish proof based upon it, because the

mujtahid from the mujtahideen from the sahaabah, and those after them, may make

ijtihaad and yet some text is hidden from them or some proof is hidden from them, or he

has some understanding but it is in opposition to the understanding of most. So this is

what the people of knowledge, and shaykhul Islaam bin Taymiyyah, specify as "issues of

khilaaf". And the issues of khilaaf are different from the issues of ijtihaad. And the well

known addage: "There is no rejection regarding the issues of khilaaf" is then corrected as:

"There is no rejection regarding the issues of ijtihaad" So using the term issues of ijtihaad

instead negates those issues of khilaaf.

And if there are two opinions: where one of them has clear proof and the other doesnt,

then we say: this is not from the issues of ijthiaad, rather it is from the issues of khilaaf,

and khilaaf is forbidden. And if the 'Aalim clearly opposes a proof then it is said this is

his ijtihaad and he has his reward, but he is wrong in this matter. And his ijtihaad is not

given precedence with the presence of a text. These opinions occured much in the time of

the taabi'een. And in the time of the taabi'een there was an increase in new matters and

the fatwas about the new matters were based upon similar to what we mentioned

regarding their establishing proof by the Book, by the Sunnah, and their establishing

proofs by the ijmaa' of the sahaabah. And so from this there came the different statements

of the taabi'een regarding these issues. And from that which is established is that if there

is some issue that was present at the time of the shaabah, and then if a another opinion

comes up, in addition to the opinions of the shaabah, then this is counted as being from

the weak differences. Meaning if the sahaabah differ over a matter having two opinions,

then if a taabi'i adds an opinion, then that is counted as being from the weak differences

by most of the people of knowledge. That is because the third opinion is a new

understanding of the proofs, and an additional understanding to the sahaabah's

understanding of the proofs. And if it were like that (i.e. that their opinion is strong

despite its being additional to the sahaabah's opinion) then the sahaabah would have

missed out on a correct understanding of an ayah, and that is impossible because the

sahaabah have the correct understanding of the ayah with them and there is no way that a

correct understanding is with the others, which they would have missed and would be

hidden from them, but rather all goodness is with them because they are the most pure in

heart of the Ummah and the most firm in knowledge and the least in burden as ibn

Mas'ud (radhi Allaahu 'anhu) mentioned.

USOOLU-FIQH

Shaykh Naasir as-Sadee

An Essay Concerning Usul ul-Fiqh

Author: Shaykh ’Abdur-Rahmaan ibn Naasir as-Sa’dee

Source: Risaalah Lateefah Jaami’ah fee Usoolil-Fiqhil-Muhimmah

All praise belongs to Allaah. So we praise Him for what He possess from His beautiful

Names and lofty and perfect Attributes; and for His Judgement and Decree which

encompasses everything in existance; and for His Divinely Prescribed Laws which

encompass every field of legislation; and His Judgement concerning rewards for the

doers of good, and punishments for the criminals.

I testify that none has the right to be worshipped except Allaah alone, who has no partner

in His Names. Attributes or Judgement. And I testify that Muhammad is His Slave and

Messenger; who clarified the Judgement and the rulings, made clear the halaal (lawful)

and the haraam (prohibited), and established the fundamentals and expounded upon them

- until the Religion was completed and establsihed firmly. O Allaah extol annd send the

blessings of peace upon Muhammad, and upon his family, his Companions and those that

follow them, particularly the Scholars.

To proceed: This is a brief essay concerning usoolul-fiqh (fundamentals of

jurisprudenec), uncomplicated in wording, clear in meaning, and useful in learning its

rulings for whosoever contemplates its meanings. We ask Allaah that He benefits both its

compiler and its reader. Indeed He is the Most Generous.

CHAPTER [ONE]

usoolul-fiqh: it is the science concerning the comprehensive evidences of fiqh. Since fiqh

consist of either [i] masaa‘il (issues) concerning which the ruling by one of the five

rulings is sought, or [ii] it is the dalaa‘il (evidences) employed in extracting and

determining these masaa‘il (issues). So fiqh is actualy knowledge of the masaa‘il (issues)

and the dalaa‘il (evidences).

These dalaa‘il (evidences) are of two types:-

[i]: Comprehensive evidences that encompass every ruling - from the beginning to the

end of fiqh - of a single kind; such as our saying: “al-amr lil-wujoob (a command is

indicative of an obligation).” Or: “an-nahee lit-tahreem (a forbiddance is indicative of a

prohibition).” And other similar evidences. So these are part of usoolul-fiqh.

[ii]:Detailed evidences that are to be understood in the light of the comprehensive

evidences. So when such is completed, then the ahkaam (rulings) can be resolved.

Thus, the ahkaam (rulings) are in need of their detailed evidences, and the detailed

evidences are themselves in need of comprehensive evidences. So by this, we recognise

the need and the necessity of knowing usoolul-fiqh, and that it aids in the understanding

of fiqh itself, and that it is the foundations for deducing and making ijtihaad in the

ahkaam (rulings).

CHAPTER [TWO]

The ahkaam (rulings) upon which fiqh revolve are five:-

[1]: Waajib (obligation): that for which the one who performs it is rewarded, whilst the

one who abandons it is punished.

[2]: Haraam (prohibition): this is the opposite of an obligation.

[3]: Masnoon (recommended): that for which the one who performs it is rewarded, whilst

the one who leaves it is not punished.

[4]: Makrooh (detested): this is the opposite of a recommendation.

[5]: Mubaah (permissible): this is where both (its doing or leaving) are equivalent.

Those rulings which are waajib (obligatory) are divided into two catagories: fard ’ayn

(individual obligation), the doing of which is sought from every mukallaf (morally

responsible), baaligh (mature) ’aaqil (sane) person. The majority of the Sharee’ah rulings

enter into this catagory. The second is fard kifaayah (collective obligation), the

performance of which is sought from the morally responsible collectively, but not from

every individual specifcally; such as the learning of the various branches of useful

knowledge and useful industries; the adhaan; the commanding of good and forbidding of

evil; and other similar matters.

These five rulings differ widely in accordance with its state, its levels and its effects.

Thus, whatever is of pure or of overwhelming maslah (benefit), then the Shaari’

(Lawgiver) has commanded its performance with either an obligation or a

recommendation. Whatever is of pure, or of overwhelming mafsadah (harm), then the

Lawgiver has stopped its doing with either an absolute prohibition or dislike. So this asl

(fundamental principle) encompasses all matters commanded of prohibited by the

Lawgiver.

As for those matters which the Lawgiver has permitted and allowed, then at times they

lead to that which is good, and so are joined to those matters which have been

commanded; and at other times they lead to that which is evil, and so are joined to those

matters which are prohibited. So this is a great asl that: “al-wasaa‘ilu lahaa ahkaamul-

maqaasid (the means take on the same ruling as their aims).”

From this we learn that: “maa yatimmul-waajib illaa bihi fahuwa waajib (whatever is

required to fulfill an obligation is itself an obligation).” Likewise, whatever is required to

fufill a rmasnoon (recomendation) is itself recommened. Whatever leads to the

establishment of a haraam (prohibition) is itself prohibited. And whatever leads to the

establishment of a makrooh (detested act) is itself detested.

CHAPTER [THREE]

The adillah (evidences) that fiqh is derived from are four:-

The Book and the Sunnah, and these two are the foundation by which the mukallafoon

(the morally responsible) are addressed, and upon which is built their Religion. Then

ijmaa’ (consensus) and al-qiyaasus-saheeh (sound and correct analogy), these two are

derived from the Book and the Sunnah. So fiqh - in its entirety - does not leave the realms

of these four usool (fundamentals).

The majority of the important ahkaam (rulings) are indicated to by these four adillah

(evidences). They are indicated to by the nusoos (texts) from the Book and the Sunnah;

and the Scholars have ijmaa’ (consensus) about them, and they are indicated to by

qiyaasus-saheeh (sound and correct analogy); because of what they entail of benefit, if it

is a command; or what they contain of harm, if it is a forbiddance. Very few of the

ahkaam have been differed over by the Scholars. In such cases the closest of them to the

truth is the one who correctly refers back to these four usool.

CHAPTER [FOUR] CONCERNING THE BOOK AND THE SUNNAH

As for the Book: It is al-Qur‘aanul-’Adheem (the Great Qur‘aan), the Kalaam (Speech) of

the Lord of the worlds, which was sent down by the Trustworthy Spirit upon the heart of

Muhammad the Messenger of Allaah sallallaahu ’alayhi wa sallam, that he may be from

the warners to the whole of mankind - in the clear arabic tongue - regarding all that they

stand in need of with regards to what benefits them concerning their Religion and their

world. The Book of Allaah is that which is recited by the tongues, written in the masaahif

(copies), and preserved in the hearts; regarding which: “No falsehood can approach from

before or from behind it, it was sent down from the All-Wise, the One deserving of all

praise.”[Soorah Fussilat 41:42].

As for the Sunnah: It is the Prophet sallallaahu ’alayhi wa sallam’s aqwaal (sayings),

af’aal (actions), and his taqreer (tacit approvals) of the sayings and actions of others.

The ahkaamush-shar’iyyah (Sharee’ah rulings) are sometimes taken from a definite text

of the Book and the Sunnah; which is defined as that text possessing a clear meaning,

which may not have any other meaning, except that single meaning. Sometimes it is

taken from the dhaahir (apparent) meaning; which is defined as that which is indicative of

the meaning, in a general manner, both through wording and meaning. Sometimes it is

taken from the mantooq (explicit meaning); which is defined as being that which is

indicative of the ruling due to the wording of the text. Sometimes the ahkaamush-

shar’iyyah is taken from the mafhoom (implied meaning); which is defined as that which

is indicative of the ruling due to being in agreement with the text; in cases where the

mafhoom is equal to, or stronger than the mantooq. Or by divergent meaning if the

mafhoom differs from the mantooq in its ruling; whereas the mantooq is linked to a wasf

(attribute) or a shart (condition), in the absence of which the ruling differs.

The dalaalah (indications) in the Book and the Sunnah are of three kinds:-

[i] Dalaalah Mutaabiqah: this is where we apply the word to indicate all of its meanings.

[ii] Dalaalah Tadammun: when we employ the wording to indicate one of its meaning.

[iii] Dalaalah Iltizaam: where we employ the wording of the Book and the Sunnah to

indicate the meaning which is a necessary consequence of it; and which follows on and

completes it; and what the matter being judged with or being informed of cannot come

about, except by it.

CHAPTER [FIVE]

The asl (fundamental principle) concerning commands in the Book and the Sunnah is that

they are indicatie of a wujoob (obligation), except if there is an eviidence to indicate to it

being mustahabb (recommended) of mubaah (permissible) The asl concerning

prohibitions is that they are indicative of tahreem (forbidance), except if there is an

evidence indicating it being makrooh (hated).

The asl governing kalaam (speech) is that it is to be taken upon its haqeeqah (literal

sense). So it is not to be turned away from it to its majaaz (figurative meaning) - if we

accept this - except when it is impossible to employ its haqeeqah (literal meaning)

Al-Haqaa‘iq (literal meanings) are of three types: [i] shar’iyyah (that which is defined by

the Sharee’ah), [ii] lughawiyyah (that which is defined by language) and [iii] ’urfiyyah

(that which is defined by customary useage).

So whatever ruling the Shaari’ (Lawgiver) has defined, then it is obligatory to return it to

the Sharee’ah definition. However, what the Lawgiver has ruled, but not defined,

sufficing by its apparent linguistic meaning, then it is obligatory to return it to its

linguistic meaning. But whatever has not been defined, neither in the Sharee’ah, nor in

the language; then it is obligatory to refer it back to the habits of the people, and their

customary useage. The Shaari’ (Lwgiver) may clearly specify to return these matters to

’urf (customry useage); such as commanding the good, living well with one’s wife, and

othersimilarmatters.

So memorise these usool concerning which the faqeeh stands in need of in all his

dealings of fiqh.

CHAPTER [SIX]

From the texts of the Book and the Sunnah are those which are ’aam (general); which is

defined as that word which is inclusive of many ajnaas (catagories), anwaa’ (types) and

afraad (individuals). This majority of the texts are of this nature. Other texts are khaass

(specific), and are indicative of only some catagories, types and individuals. Thus, if

there does not exist any contradiction between the ’aam and the khaass texts, then each of

them are independantly acted upon. However, if a contradiction is presumed, then the

’aam is specified and deliniated by the khaas.

From the texts are the mutlaq (absolute) and the muqayyad (restricted) ones. It is

restricted by a description or a reliable restriction. Thus, the mutlaq is restricted and

qualified by the muqayyad.

And from the texts are the mujmal (comprehensive) and mubayyan (explicit). Whatever

the Lawgiver has made comprehensive in one place, yet made it explicit in another, then

it is obligatory to return to what the Lawgiver made mubayyan (explicit). Many of the

rulings in the Qur‘aan are mujmal (comprehensive) in nature, but have been explicitly

explained in the Sunnah. So it is obligatory to return to the bayaan (explicit clarification)

of the Messenger sallallaahu ’alayhi wa sallam, since he is the clear explainer from

Allaah.

Similar to this are the texts that are muhkam (equivocal and singular in meaning) and

those that are mutashaabih (unequivocal and open to more than one meaning). It is

obligatory to understand the mutashaabih in the light of those texts that are muhkam.

Amongst the texts are the naasikh (abrogating) and the mansookh (abrogated) The

abrogated texts in the Qur‘aan and the Sunnah are few in number. Whenever there is the

possibility of harmonising two texts, with the possibility of each one being acted upon in

its own particular circumstance, then it is obligatory to do so. One may not turn to

abrogation, except with a text from the Lawgiver, or an apparent contradiction between

two authentic texts concerning which there is no possible way to reolve this contradiction

such that each text is acted upon in its own particular circumstance. in this case, the later

text abrogates the earlier one. However, if it is impossible to determine which is the

earlier text and which is the later, we then turn to other means of tarjeeh (prefering one

text over another). For example, when there is an (apparent) contradiction between the

Prophet sallallaahu ’alayhi wa sallam’s statement and his action, then precedence is given

to his saying. This is because his statement represents either a command or a prohibition

to his Ummah, whereas his action is, in this case, interpreted to be something particular to

him alone. So the khasaa‘is (particular and unique rulings) pertaining to the Prophet

sallallaahu ’alayhi wa sallam are actually based upon this asl (fundamental principle).

Likewise, when the Prophet sallallaahu ’alayhi wa sallam does something as an act of

’ibaadah (worship), but he does not command its performance, then what is correct is that

this action of his is indicative of it being mustahabb (recommended). If he does

something as an act of ’aadah (custom or habit), then it is indicative of it being mubaah

(permissible).

Whatever the Prophet sallallaahu ’alayhi wa sallam acknowledges of statements and

actions, then the ruling is one of ibaahah (permissibility), or other than it, according to the

manner in which he acknowledged such statements and actions.

CHAPTER [SEVEN]

As for the ijmaa’ (consensus): it is the agreement of the mujtahid Scholars upon a new

judgement. So, whenever we are certain about their ijmaa’, then it is obligatory to turn to

it, and it is not lawful to oppose. It is necessary that any ijmaa’ be rooted in the evidences

of the Book and the Sunnah.

As for qiyaasus-saheeh (correct and sound analogy): it is linking a subsiduary branch

with its root, due to a commen Illah (effective cause) between them. So whenever the

Lawgiver indicates a matter, or describes it with a particular wasf (characteristic); or the

Scholars deduce that the ruling has been legislated because of that particular wasf

(characteristic), then if that particular wasf (characteristic) is found to exist in another

issue, which the Lawgiver has not legislted any particular ruling for - without their being

a difference between it and the texts - then it is obligatory to link the two in their ruling.

This is beacuse the All-Wise Lawgiver does not differentiate between matters equivilent

in their characteristics, just as He does not join betweeen dissimilar and opposing matters.

This sound and correct qiyaas (analogy) is al-Meezaan (the Balance) which Allaah sent

down. And it is inclusive of justice, and it is that by which justice is recognised.

Qiyaas is only resorted to when there exists no text. So this asl (fundamental principle) is

turned to when there exists no other source.. And qiyaas supports the text. Thus, all that

the texts that the Lawgiver has given rulings to, then they are in agreement with qiyaas,

not in opposition to it.

CHAPTER [EIGHT]

The Scholars of usool have deduced from the Book and the Sunnah many usool

(fundamental principles), upon which they have built many rulings; by which they have

also benefitted themselves and benefitted others.

Amongst these usool (fundamental principles):

[1] “Al-yaqeen laa yazoolu bish-shakk [certainty is not invalidated by doubt].”

Under this principle they have entered many ’ibaadaat (acts of worship), mu’aamalaat

(social interactions) and huqooq (rights). So whosoever entertains a doubt regarding any

of that, should return to the asl of certainty. They also deduce: “al-aslut-tahaarah fee kulli

shay [The basis concerning all things is that they are pure].” And: “al-aslul-ibaahah illaa

ma dallad-daleelu ’alaa najaasatihi aw tahreemihi [The asl (basic principle) is

permissibility of using anything, except when there exists an evidence indicative of its

impurity or prohibition].” And: “The asl is freedom from accountability concerning

obligations towards the creation, until a proof is established to the contrary.” And: “The

asl is the continuation of accountability concerning the obligations to the Creator, and to

His servants, until there is certain proof of freedom and discharging.”

[2] And from them is that: “Al-mashaqah tajlibut-tayseer [difficulty brings about ease].”

Based upon this are all the rukhas (concessions) allowed during a journey, and a

lightening of ’Ibaadaat (acts of worship), mu’aamalaat (social transactions), and other

matters.

[3] And from it is their saying: “Laa waajib ma’al-’ajaz wa laa muharram ma’ad-

daroorah [there is no obligation with inability, nor is there any prohibition with

necessity].”

The Lawgiver has not made incumbant upon us what we are incapable of doing in

totality. What the Lawgiver has made obligatory, from the obligations, but the servant is

incapable of performing it, then that obligation is totly dropped. However, if he is capable

of performing a part of it, then it is required for him to fulfill what he is capable of, whilst

the part he is incapable of is dropped. There are many mnay examples of this.

Likewise, whatever the creation are in need of, then it has not been made haraam

(prohibited) to them. As for the khabaa‘ith (evil matters), which have been made haraam,

then if the servant is in need of that (due to a necessity), then there is no sin in using it.

This is because daroorah (necessity) allows those matters which are fixed and prohibited.

And daroorah is measured by its need, in order to lessen the evil. Thus, daroorah permits

the use of what is normally forbidden from food, drinks, clothing, and other than them.

[4] And from them: “Al-umooru bi maqaasidiha [matters are judged by their motives].”

Entering into this are the ’ibaadaat and the mu’aamalaat. Likewise, the prohibition of

employing forbidden hiyaal (means and strategems) is derived from this asl. Likewise, is

directing those words which are kinaayaat (not clear and unequivocal) to be sareeh (clear

and equivocal) is based upon this asl. Its forms are very many indeed.

[5] And from them: “Yukhtaaru ’alal-maslahatayn wa yartakab akhafal-mufsadatayn

’indat-tazaahum [select the higher of the two benefits, or incur the lesser of the two harms

when faced with them both].”

Upon this great principle many issues are built. So when the benefit and harm are both in

equal proportion, then: “dar‘ul-mafaasid uwla min jalbil-masaalih [repelling harm takes

precedence over procuring benefits].”

[6] And from this is the principle: “Laa tutimmul-ahkaam illaa bi wujoodi shurootiha wa

intifaa‘ mawaani’iha [rulings are not complete except with the presence of their

conditions and the negation of their impediments].”

This is a tremendous principle, upon which is built - from the issues, rulings and other

matters - many things. So whenever a shart (condition) for ’ibaadaat (acts of worship), or

mu’aamaalaat (social transactions), or establishment of rights is not present, then the

ruling is not correct, nor is it established. Likewise, if its mawaani’ (impediments) are

present, then it is nor correct, nor is it legally valid.

The shuroot (conditions) for ’ibaadaat and mu’aamalaat are: all those matters upon which

the validity of such ’ibaadaat and mu’aamalaat rest. And these shuroot are known by a

thorough and detailed study of the Sharee’ah. Due to this asl, the fuqahaa were able to

enumerate the faraa‘id (obligations) of the various ’ibaadaat, and its shuroot (conditions).

Likewise, by it they were able to determine the various shuroot (conditions) and

mawaani’ (impediments) for the mu’aamalaat.

As regards al-hasr (collecting and enumerating): it is establishing a ruling for something,

whilst negating it from something else. By it, the fuqahaa are able to determine the

shuroot of various things and matters, and that what is other than it, then the ruling is not

affirmed for it.

[7] And from it is their saying: “al-hukm yuduru ma’a ’illatihi thabootan wa ’adaman [the

ruling revolves around its effective cause in both affirmation and negation].”

So when the ’illatut-taamah (complete effect cause) - which it is known theat the Shaari’

has linked the ruling to it - is present, then the ruling is present; and when it is absent,

then the ruling is not established.

[8] And from them is their saying: “al-aslu fil-’ibaadaat al-hadhru illaa maa waradah

’anish-shaari’ tashree’ahu, wal-aslu fil-’aadaat al-ibaahaa illaa maa waradah ’anish-

shaari’ tahreemahu [the basic principle concerning acts of worship is prohibition, except

what is related from the Lawgiver regarding its legislation, and the basic principle

regarding customs and habits is permissibility, except what is related from the Lawgiver

regarding its forbiddance].”

This is because al-’ibaadah (worship) is what the Lawgiver has prescribed; either as an

obligation, or a recommendation. Thus, whatever steps out of this is not considered to be

an act of worship. And beacuse Allaah created for us all that is upon the earth, so that we

may benefit from all things and utilise them, except those things that the Lawgiver has

made haraam (unlawful) to us.

[9] From them: “idhaa wajidat asbaabul-’ibaadaat wal-huqooq thabatat wa wajibat illaa

idhaa qaaranahl-maani’ [if the cause for acts of worship are present, they are confirmed

and oblugatory, except if linked by a prevention].”

[10] And from them: “al-waajibaatu talzimul-mukallafeen [obligations obligate the

morally responsible].”

So at-takleef is reached with: al-buloogh (attainment of maturity) and al-’aql (sanity).

However, compensation for injury and harm is required from the makallafeen (morally

responsible), and others. So whenever a person reaches maturity and is sane, those

general obligation then become required from him to do. And those specific obligations

also become required from him, providing he possess those qualities which necessitate

that. The naasee (forgetful) and the jaahil (ignorant one) is not held responsible from the

point of view of sinning, nor from the point of view of compensating what is harmed or

injured.

CHAPTER [NINE]

The statement of a single Sahaabee (Companion) - who is defined as anyone who met the

Prophet sallallaahu ’alayhi wa sallam, having eemaan (certainty of faith) in him, and

dying upon eemaan - if it has become widespread and not objected to, but rather it has

been affirmed by the Sahaabah (Companions), then it is a form of ijmaa’ (consensus). If

it is not known to have become widespread, nor is there known to be anything in

opposition to it, then according to the most correct opinion, it is a hujjah (proof).

However, if other Companions have disagreed or contradicted it, then it is not a proof.

CHAPTER [TEN]

An amr (command) for something, entails a nahee (prohibition) for its opposite. And a

prohibition of something, entails a command for its opposite. A prohibition of something

necessitates that matter to be null and void, except if there is a daleel (evidence)

indicative of its validity. And a command which follows a prohibition, returns it to what

it was prior to this. And both an amr and a nahee necessitate immediate compliance, but

they do not require repitition, except when linked to a specific sabab (cause). So it

becomes waajib (obligatory) or mustahabb (recommended) to comply whenever that

sabab (cause) exists.

Matters in which a choice is given are of varying types. So if the choice was given with

the aim of facilitating ease to the makallaf, then the choice is desirable and preferred. If

the choice was given to achieve a particular maslahah (benefit), then choosing that which

is a greater benefit is obligatory.

Words indicative of generality are: kull, jaami’, al-mufridul-mudaaf (the genetive form of

a singular), the indefinite when attatched to a nahee (prohibition), a nafee (negation), an

istifhaam (interrogative), or a shart (condition).

And: “al-’ibrah bi ’umoomil-lafdh laa bi khusoosi-sabab [the lesson. or consideration is

in the generality of the wording, not in its specific cause of legislation].”

The khaass (specific) can mean the ’aam (general); and visa versa, providing the

existance of qaraa‘in (signs) are indicative of this.

The Khitaab (address) of the Lawgiver to any one of the Ummah, or His Speech in any

specific issue, actually includes all the Ummah, and all the specific issues, unless there is

an evidence indicative of it being khaass (specific). Likewise, the asl (basic principle)

conecring the cations of the Prophet sallallaahu ‘alayhi wa sallam is that his Ummah is to

take him as a model and an example to follow, except when there exists an evidence

indicative of that being specific to him.

If the Lawgiver negates an act of worship or a social transaction, then this is indicative of

it being invalid; or a negation of some necessary aspect of it. Hence, it does not become

totaly invalid beacuse of the negation of some of its recommended aspects.

Contracts are bound or cancelled by all that which is indicative of this, from both

statements and actions.

Masaa‘il (issues) are of two types:- [i]: Those that have been agreed upon by the

Scholars. So here it is required to picture and to establish the evidence upon it, then to

rule accordingly, after picturing and deducing. [ii]: That in which the Scholars have

differed. So here it is required to reply to the evidence of the differing opinions. This is

the right of the mujtahid (the one capable of employing ijtihaad) and the mustadlil (the

one able to employ inductive reasoning). As for the muqallid (blind follower), his duty is

to ask the People of Knowledge.

And taqleed is: the acceptance of a saying of someone, without a proof. So the one

capable of inductive reasoning, then it is upon him to excersise ijtihaad and istidlaal. as

for the one who is incapable, the it is upon him to make taqleed and ask; as Allaah has

mentioned both matters in His Saying: “Ask the People of Knowledge if you do not

know.” [Soorah al-Anbiyaa 21:7].And Allaah knows best.

And may Allaah extol and send the blessings of peace upon Muhammad, the Messenger

of Allaah, and upon his Family, Companions and followers.

IMPORTANT FIQH PRINCIPLE

Qaa'idaat al-Istihlaak

The fiqh rule is: any change in the substance entails change in its ruling’.

The Hanafi Position

In vol. 1, page 314, Hashiya ibn Abedin, Radd al Muhtar ala ad-durr al Mukhtar, a

standard Hanafi fiqh text book, written by Muhammad Ala’a al Deen Al Hasafki, there

are more than thirty purifying things mentioned by Al Hasafki (rendered into a poetry

form to make it easy to memorize) . In one line he said, ‘and change of substance" .

Ibn Abedin said, "the swine which drowns in a salt lake, after decomposition, becomes

salt and thus halal". Ibn Abedin based his comments on the saying of Al Hasafki

regarding the manufacturing of vinegar made from wine. "According to the principle of

change of substance, vinegar made of wine is lawful".

He then went on to say, "Vinegar made by mixing wine with water, according to the

correct opinion, is pure"

One page 315, Al Hasafki has said that "soap made from impure oil is pure and can be

used. Ibn Abedin, commenting on this said, "This is an example of change of substance".

he then went on to quote a statement issued by Al Mugtaba which reinforced Al

Hasafki’s view that pure soap could be derived from oil that was not pure. A similar

position was reflected by Muhammad ibn Al Hasan, the second great pupil of Abu

Hanifa.

According to Ibn Abedin, the fat of a dead animal, used to make soap is subject to the

same conditions. The expression used was impure (najas) as opposed to mutanajjis which

means to make impure. However, oil is usually used in preference to other fatty

substances. However, reading Al Munyah, I found an explanation which supports the first

view, he states, "If a man or dog falls into the container in which soap is being made, it

remains pure".

Ibn Abedin goes on to say, "Know that a compound is deemed pure, according to

Muhammad ibn Al Hasan, from the rule which allows for change of substance". In

addition, he adds that any product or substance, not only soap, can also be judged pure on

account of its widespread use.

One page 326, on the subject of change of substance, as if to reinforce the point, al

Hasafki says that dust and smoke particles rising from burnt human or animal excrement

cannot be judged impure. If it were, he says, then we would be forbidden to eat bread

baked on fires in which such impurities were used as fuel. The same can be said for salt

filtered from animal-contaminated lakes.

This, concludes Ibn Abedin, is how any product or substance is judged to be pure or

otherwise. Muhammad Al Dakhira, Al Muhit and Abu Hanifa are all of the same opinion.

Other shaikhs choose to follow this ruling as well. This is the chosen rule for the Shar’iah

ruled that these things were impure in their nature. The reality of a thing changes with the

change of some of its implied parts, not to mention all of them. Salt is totally different

from meat and bones. If they become salt, they are salt. What is similar to that in the

Shar’iah is the life-germ (sperm), the beginning of human life. From a Hanafi point of

view it is impure, then it is turned into a clot, it is still impure, then it becomes a lump of

flesh and at this point it becomes pure.

The same goes for wine juice. it is pure, when it becomes wine it becomes impure, but

when it turns to vinegar, it becomes pure. This is as far as the Hanafi school is concerned.

The Hanbali position

The Hanbali school’s attitude is quite different. In al Mughni by Ibn Qudamah, a Hanbali

standard book, in the book of purity, section on utensils, he writes: ‘No impure thing

could turn into pure as a result of the change in its substance except wine when it changes

by itself into vinegar’.

But it could be deduced that all impure things become pure as a result of the change of its

nature, analogous to the change of wine to vinegar is the skin of a dead animal when

tanned and the domestic, edible birds and animal which eat excretion.

The Dhaahiri - Literalist position

According to the Literalist School: Ibn Hazm, the exponent of the Literalist school wrote

in his manual (Al Muhalla) volume 1, page 166, problem no. 132: ‘If the excretion of the

animal is burnt down or changed and becomes ashes or dust, all that becomes pure and

can be used for tayammum (earth purification) . The proof of that is the fact that rules are

in accordance with what Allah Most High, has ruled regarding the objects in what the

object is named. If the name of the object is changed or dropped, the previous rule is

dropped as well. It is something from that which Allah has named’. As such, excretion is

different from dust, as it is different from ashes. The same thing with wine which is

different from vinegar and human being is different from the blood from which he is

created. The dead thing is different from dust or ashes.

In problem 136, page 178, he goes on to say: ‘If the quality of the substance of naturally

impure object changes the name which was given to it so that it is no more applicable to

it and it is given a new name which is given to a pure object, so it is no more an impure

thing. It becomes a new object, with a new rule.

The same thing is true of a pure thing changing into impure thing such as juice becoming

wine or the wine becoming vinegar. The pork flesh eaten by a chicken and becoming a

chicken flesh. It is halal. The water becoming wine or the food turning into excretion, the

excretion and the wine used as fertilizer or becoming a fruit and so many other things.

Al Qur’an

The basis of all these is the Qur’anic verse:

‘And surely there is a lesson for you in the cattle we give you to drink of what is in their

bellies from between the faeces and blood, pure milk, wholesome to those who drink it’

(16-66)

Allah Most High, considers it one of the favours He bestowed upon people that a healthy

pure animal product comes out of these impure things.

Gathered from various sources.

The principle of permissibility

‘‘The principle regarding acts of worship is one of prohibition, except if the Sharee’ah

(Divinely Prescribed law) relates a prescription for it. And the principle regarding

customary behavior is permissibility, except when the Sharee’ah relates a prohibition for

it.’’ (Al-Aslu fil-’ibaadaat al-hadhru illaa maa warada ’anish-shar’ee tashree’ahu. Wal-

aslu fil-’aadaat al ibaahah illaa maa warada ’anish-shar’ee tahreemahu). [1]

The above principle is an important principle that Islaam teaches. Thus, with regards to

matters of ’aadaat (day-to-day actions), such as eating, drinking and wearing clothes, then

everything is allowed in this regard, except if there is a clear and authentic evidence

restricting or prohibiting its allowance. However, when it comes to ’ibaadaat (acts of

worship), then the opposite is the case. Here, nothing can be established as an act of

worship, except if there is clear and authentic text to allow it. So the basic principle for

’aadaat is ibaahah (permissibility), whereas the basic principle for ’ibaadaat is tahreem

(prohibition).

Shaykhul-Islaam Ibn Taymiyyah (d.728H) - rahimahullaah - said:

‘‘Peoples’ sayings and actions are of two kinds: ’ibaadaat (acts of worship) by which

their Religion is established, and ’aadaat (customary practices) which are required for

day-to-day living. From the principles of the Sharee’ah (Divinely Prescribed Islaamic

Law), we know that acts of worship are those acts which have been prescribed by Allaah

or approved by Him; nothing is to be affirmed here, except through the Sharee’ah.

However, as far as worldly activities of people are concerned they are necessary for

everyday life. Here the principle is freedom of action; nothing may be restricted in this

regard except what Allaah - the Most Perfect - has restricted. This is the case because

commanding and prohibiting are both in Allaah’s Hands. As far as worship is concerned,

there has to be a command from Him concerning it. Thus, when it requires a command

from Allaah to establish something, how can we say that something is restricted without

His command? This is why Ahmad Ibn Hanbal (d.241H); and other jurists who base their

judgements upon ahaadeeth (Prophetic narrations) say: In relation to acts of worship, then

the principle is tawqeef (limitation); that is to say, nothing can be legislated in this regard

except what Allaah legislates. To do otherwise is to incur the risk of being included in the

meaning of the aayah:

‘‘Do they have partners with Allaah who prescribe for them in the Religion that for

which Allaah has not given any permission.’’ [Soorah ash-Shooraa 42:11]

However, as far as living habits are concerned, the principle here is freedom because

nothing can be restricted in this regard except what Allaah has prohibited. To do

otherwise is to be included in the meaning of His saying:

‘‘Say: Do you see what Allaah has sent down to you for sustenance? Yet you have made

some part of it halaal (lawful) and some part haraam (prohibited).’’ [Soorah Yoonus

10:59]

This is a great and beneficial principle, on the basis of which we can say that buying

selling, leasing, giving bills, and other such matters are necessary activities for people, as

are eating, drinking and the wearing of clothes. Thus, it the Sharee’ah (Divinely

prescribed Islaamic law) says something about these day-to-day matters, it is in order to

teach good behavior. Accordingly, it has prohibited whatever leads to corruption, has

made obligatory that which is essential, has disapproved of that which is superfluous, and

has approved of that which is beneficial. All this has been done with due consideration of

the magnitude and properties of the various types of activities involved. Since this is the

position of the Sharee’ah, people are free to buy, sell and to lease just as they wish, just

as they are tree to eat and drink what they like - as long as it is not haraam (unlawful).

Even though some of these things may be disapproved, they are still free in this regard,

since the Sharee’ah does not go to the extent of prohibiting them - and thus the original

principle (of permissibility) remains.’’[2]

Footnotes:

[1] Minhaajul-Qaasideen Mukhtasar fee Usoolil-Fiqh (p. 31) of Shaykh ’Abdur-Rahmaan

as--Sa’dee.

[2] Al-Qawaa’idun-Nooraaniyyah al-Fiqhiyyah (p. 112-113).